LIBRARY 

OE  THE 

UNIVERSITY  of  ILLINOIS 


Evasions  of  the  Civil  Service  Law  through 
Constructions  placed  on  Special  Legisla¬ 
tion  ;  Growth  of  the  Practice. 


A  REPORT 


PREPARED  BY  THE 

INVESTIGATING  COMMITTEE 

OF  THE 

National  Civil-Service  Reform  League, 


1901 . 


Evasions  of  the  Civil  Service  Law  through 
Constructions  placed  on  Special  Legisla¬ 
tion  ;  Growth  of  the  Practice. 


A  REPORT . 


To  the  Council  of  the  National  Civil  Service  Reform  League  : 

Your  special  committee,  appointed  to  enquire  into  the  con¬ 
dition  of  the  Federal  Civil  Service,  begs  leave  to  offer  the  fol¬ 
lowing  report  in  regard  to  certain  appointments  made  without 
examination : 

The  civil  service  rules  defining  the  classified  service  are 
so  framed  as  to  apply  to  new  positions,  when  these  are  created, 
of  the  same  general  description  as  those  already  included. 
Such  positions,  whether  established  under  Executive  authority 
or  created  by  Congress,  fall  naturally  under  the  appropriate 
classified  division,  except  where  Congress  by  express  legisla¬ 
tion,  provides  otherwise. 

The  employees  of  the  Census  Bureau  and  the  two  thousand 
or  more  clerks  employed  under  the  War  “emergency”  acts, 
were  thus  excluded,  and  are  not  within  the  scope  of  this  report. 

A  large  number  of  positions  have,  however,  been  created 
by  recent  legislation,  where  there  was  no  express  exclusion, 
but  where  some  ambiguity,  or  difference  from  the  usual  form 
in  the  language  of  appropriation  bills,  providing  for  salaries 
or  other  compensation,  has  been  construed  by  appointing 
officers  to  amount  to  an  exclusion. 

Large  and  important  classes  have  been  so  treated,  the  only 
reason  alleged  being  that  under  the  terms  of  particular  acts 
the  Department  officer  has  been  authorized  to  “  select  ”,  or  to 
“employ”,  rather  than  to  “appoint”;  though  it  is  difficult  to 
believe  that  in  such  cases  these  words  are  used  in  any  other 
than  their  synonymous  sense. 


4 


The  construction,  under  which  such  exemptions  occur,  so 
far  as  we  can  learn,  are,  in  most  cases,  purely  arbitrary.  The 
number  of  exemptions  made  under  them  is  growing,  and  it 
would  appear  that  a  new  means  for  successfully  circumvent¬ 
ing  the  civil  service  law  has  been  discovered,  the  development 
of  which,  unless  checked  by  the  President  and  heads  of  De¬ 
partments — who  very  clearly  have  the  power  to  check  it — will 
result  very  unfortunately.  A  number  of  examples  are  here 
given : 

THE  RURAL  FREE  DELIVERY  SERVICE. 

I. — All  appointments  in  the  Rural  Free  Delivery  Service 
are  made  without  examination  for  the  reason  that  in  the  ap¬ 
propriation  act  that  service  was  spoken  of  as  “Experimental”. 
In  a  debate  in  Congress  Mr.  Loud,  the  chairman  of  the  House 
Committee  on  Post-offices  and  Post  Roads,  stated  that  the 
use  of  this  word  placed  the  office  outside  the  classified  service. 
This  claim  could  not,  however,  be  rightly  based  merely  on  the 
ground  that  the  service,  at  the  outset,  was  to  be  temporary,  as 
Mr.  Loud  meant  to  imply.  Appointments  that  are  tempo¬ 
rary- — a  description  that  in  this  case  would  certainly  seem  to  be 
synonymous  with  u  experimental  -are  subject  to  the  same 
general  provisions  of  the  Civil  Service  rules  as  those  that  are 
permanent.  But,  however  that  may  be,  it  is  evident  that  the 
time  is  now  past  when  this  branch  of  the  service  can  be  con¬ 
sidered  experimental.  In  the  words  of  the  First  Assistant 
Postmaster-General  (P.  M.  General’s  Report,  Nov.  3,  1900, 
P-  ”3): 

“The  service  popularly]  known  as  4  Rural  Free  Delivery’  must 
hereafter  be  considered  by  the  Department  and  provided  for  by  Congress 
as  a  permanent  and  expanding  feature  of  the  postal  administration.’ 

There  is  certainly  nothing  in  the  special  act  which  would 
prevent  the  President  from  now  classifying  this  service  by 
executive  order.  It  is  possible  that  the  rural  carriers  could 
not  be  conveniently  included,  since  their  work  is  not  always 
continuous  and  is  frequently  done  in  connection  with  some 
private  employment — a  carrier,  for  instance,  furnishing  the 
facilities  for  the  conveyance  of  the  mails  in  connection  with 
some  business  of  his  own.  But  the  Post  Office  Department 
has  appointed  a  large  number  of  special  agents  in  this  service 
who  perform  continuous  administrative  and  clerical  work,  and 
who  could  easily  be  classified.  In  all  the  large  cities  there 


5 

are  numbers  of  these  special  agents,  about  forty  being  so  em¬ 
ployed  in  Washington  alone.  It  is  submitted  that  these  places 
should  be  made  subject  to  future  competitive  examination, 
and  that  this  would  be  of  great  advantage  to  the  service. 

THE  FOREST  RESERVE  EMPLOYEES. 

II. — By  an  act  passed  June  4,  1897,  Congress  created  the 
“  Forest  Reserve  Bureau”  to  be  charged,  under  the  direction 
of  the  Secretary  of  the  Interior,  with  the  care  and  administra¬ 
tion  of  the  National  forest  reserves,  and  on  July  1,  1898,  an 
appropriation  of  $175,000  was  made  to  cover  the  employment 
of  the.,  necessary  superintendents,  inspectors,  surveyors,  for¬ 
estry  agents,  rangers,  etc.  The  appropriation  act,  in  this  case, 
provided  merely  that  these  employees  should  be  “ appointed ” 
by  the  Secretary  of  the  Interior,  and  “  wholly  with  reference 
to  their  fitness  and  without  regard  for  their  political  affilia¬ 
tions  ”.  There  was  nothing  in  this  language  to  interfere  with 
appointments  under  the  civil  service  law;  rather  the  reverse. 
It  is  understood,  however,  that  Mr.  Bliss,  who  was  then  Sec¬ 
retary,  claimed  the  rules  did  not  apply  for  the  reason  that  none 
of  the  general  provisions  defining  the  classified  service  exactly 
fitted  these  particular  positions.  The  Civil  Service  Commis¬ 
sion  held  the  other  view  and  so  stated  in  a  letter  addressed  to 
the  Secretary  on  July  29,  1898,  asking  his  authority  for  the 
appointments  without  examination  that  had  already  been 
made,  and  for  the  names  of  the  appointees.  This  letter  the 
Secretary  did  not  answer.  The  Commission  still  holds  its 
view  but  the  “  Forest  Reserve  Bureau”  has  been  treated  as 
entirely  unclassified.  The  number  of  employees,  meanwhile, 
has  grown,  the  annual  appropriations  for  their  salaries, 
which  were  again  $175,000  in  1898,  having  been  increased  to 
$335,000  in  1900,  and  $325,000  in  1901.  How  far  the  De¬ 
partment  has  been  able  to  make  its  selections,  in  the  absence 
of  protective  rules,  “with  reference  to  fitness  wholly,  and  with¬ 
out  regard  for  political  affiliations  ”  your  Committee  is  unable 
to  say.  If,  however,  there  be  a  doubt  as  to  whether  these 
positions  are  embraced  by  the  present  rules  within  the  classified 
service,  there  can  be  no  question  whatever,  that  they  ought 
speedily  to  be  incorporated  within  this  service.  To  subject 
such  places  permanently  to  the  usual  methods  of  arbitrary 
appointment,  permitting  their  use  as  party  spoil,  would  result 
in  the  degradation  of  the  service  to  such  an  extent  as  to  nullify 


6 


the  forest  reserve  policy  of  the  government.  The  Bureau  can 
easily  be  classified  by  an  order  of  the  President,  with  the 
approval  of  the  Secretary  of  the  Interior. 

APPOINTMENTS  BY  MR.  HEATH. 

III.  — In  the  report  to  the  Commission  of  changes  in  the 
Post  Office  Department,  for  the  month  of  June,  1899,  there 
appeared  the  names  of  twenty-four  persons  as  “  temporary 
clerks  in  the  office  of  the  First  Assistant  Postmaster-General”. 
These  clerks,  whose  tenure  it  may  be  remarked,  has  become 
virtually  permanent,  were  appointed  without  the  required  ex¬ 
aminations.  The  act  providing  for  them  referred  merely  to 
“the  employment  during  the  nine  months  beginning  July  1, 
1899,  of  such  additional  temporary  force  ....  necessary  to 
the  prompt,  efficient  and  accurate  despatch  of  the  business  in 
the  office  of  the  First  Assistant.”  There  was  nothing  in  it 
denying  this  employment  to  those  on  the  eligible  lists  of  the 
Commission,  who  had  qualified  for  it  and  who  were  entitled  to 
it.  The  Commission  informed  the  First  Assistant,  Mr.  Perry 
Heath,  that  his  appointments  were  illegal  and  should  be  dis¬ 
continued.  No  reply  was  made  to  this  letter,  and  Mr.  Heath's 
appointees  remained  undisturbed.  In  the  provision  for  their 
continuance  for  another  year,  contained  in  the  appropriation 
act  of  April  17,  1900,  they  were  described  as  “rendered 
necessary  because  of  increase  of  work  incident  to  the  war  with 
Spain.”  As  all  appointments  so  described  had  been  exempted 
by  Congress  from  the  operation  of  the  Civil  Service  act,  they 
were  by  virtue  of  this  enactment  nominally  validated  from  that 
time  forward.  In  the  act  of  March  3,  1901,  provision  was 
made  for  their  continuance  for  the  current  year. 

STOCKMEN  AT  THE  INDIAN  AGENCIES. 

IV.  — In  the  Interior  Department,  the  act  making  appro¬ 
priations  for  the  year  ending  June  30,  1902,  contains  the  fol¬ 
lowing  clause : 

“  To  enable  the  Secretary  of  the  Interior  to  employ  practical  farm¬ 
ers,  and  practical  stockmen,  subject  only  to  such  examination  as  to 
qualification  as  the  Secretary  of  the  Interior  may  prescribe,  in  addition 
to  the  Agency  farmers  now  employed,  at  wages  not  exceeding  $65.00 
per  month,  to  superintend  and  direct  farming  and  stock-raising  among 
such  Indians  as  are  making  effort  for  self-support,  sixty-five  thousand 
dollars.” 

The  appointments  of  farmers  and  stockmen  since  the 


7 

passage  of  this  act  have  been  made  without  examination. 
As  the  act  expressly  refers  to  tests  prescribed  by  the  Secretary 
of  the  Interior  alone,  it  is  probable  that  it  permits  this  to  be 
done,  but  the  situation  is  unfortunate,  since  about  twenty  per¬ 
sons  were  appointed  as  farmers  and  stockmen  prior  to  the  act, 
by  competitive  examination.  To  have  two  sets  of  men  doing 
the  same  work,  appointed  in  two  different  ways,  seems  not 
only  illogical,  but  calculated  to  imperil  the  classified  part  of 
this  service.  It  is  submitted  that  the  President,  with  the  con¬ 
currence  of  the  Secretary  of  the  Interior,  may  very  properly 
establish  a  rule  for  the  uniform  examination  of  all  these  farm¬ 
ers  and  stockmen  by  the  examiners  of  the  Civil  Service  Com¬ 
mission  ;  or  that  the  Secretary,  having  the  right  to  prescribe 
any  examinations  he  sees  fit,  may  himself  accept  those  of  the 
Civil  Service  Commission. 

On  the  ioth  day  of  June,  the  above  cases  were  brought  to 
the  notice  of  the  President,  in  a  communication  addressed  to 
him  by  the  Chairman  of  your  Committee,  and  he  was  respect¬ 
fully  urged  to  include  each  and  all  of  them  within  the  classi¬ 
fied  service,  through  specific  executive  orders. 

EVASIONS  OF  THE  RULES  ON  VARIOUS  OTHER  PRETEXTS. 

Further  cases  that  have  come  to  your  Committee's  know!- . 
edge  include  the  following: 

V. — The  Deficiency  Bill  of  March  3,  1899,  made,  an  ap¬ 
propriation  of  $15,000  for  the  reproduction,  under  the  direction  . 
of  the  Commissioner  of  the  General  Land  Office,  of  official 
plats  of  United  States  surveys,  diagrams  and  correspondence, 
constituting  the  files  of  the  office  of  the  register  of  the  General 
Land  Office  at  Bismarck,  N.  D.,  which  were  destroyed  by  fire 
in  August,  1896.  The  force  of  copyists,  numbering  fourteen, 
was  employed  without  reference  to  the  Civil  Service  law.  Their 
employment  was  continued  beyond  the  year  appropriated  for,, 
further  provision  being  made  for  it  in  the  act  of  February  9,  . 
1900.  In  this  case  it  is  the  understanding  that  the  Depart¬ 
ment  contends  that  the  language  of  the  act  implied  that  the  ... 
work  was  of  the  “  emergency”  order,  and  not  subject  to  the 
rules,  and  it  seems  that  the  copyists  are  carried  on  the  rolls 
nominally  as  “laborers".  Those  on  the  eligible  lists  who 
might  be  selected  are  thus  debarred.  It  appears  that  the  pro¬ 
visions  recently  made  by  Congress  for  clerical  work  in  the. 
reproduction  of  records  of  the  Land  Office  have  been  construed 


8 

in  the  same  way  in  nine  other  cases,  the  appropriations  in  these 
cases  aggregating  $47,000. 

VI. — In  establishing  the  new  reference  library  in  the 
Government  Printing  Office,  Congress  provided  that  the  libra¬ 
rian,  or  as  the  act  reads,  “  the  person  or  persons  who  shall  have 
charge  of  such  library  ”,  should  be  “selected  and  appointed 
by  the  Public  Printer”.  This  the  Public  Printer  construed  as 
an  exemption  and  examinations  for  appointment  were  not 
held. 

In  a  letter  of  the  Civil  Service  Commission  to  the  Attor¬ 
ney-General,  dated  March  9,  1901,  it  is  pointed  out  that  all 
clerks  of  United  States  District  Attorneys  have  been  appointed 
without  examination,  although  the  rules  except  “not  to  exceed 
one  private  Secretary  or  Confidential  clerk  ”  to  each  of  these 
officers.  There  are  at  least  five  who  have  two  clerks  and  one 
who  has  five,  all  of  whom  were  appointed  without  compliance 
with  the  law.  The  Attorney-General,  in  reply,  refers  to 
an  act  of  May,  1887,  authorizing  District  Attorneys  to  em¬ 
ploy  ....  the  necessary  clerical  assistants,  etc.”  Under  a 
construction  followed  by  the  office,  he  states  the  persons  so 
“employed”  are  not  considered  as  “appointed”,  within  the 
meaning  of  the  civil  service  rules.  The  Commission  did  not 
feel  that  it  could  do  otherwise  than  accept  the  Department’s 
decision,  and  the  exemption  stands. 

In  the  act  of  July  1,  1898,  $2,000  was  appropriated  “for 
temporary  typewriters  and  stenographers  in  the  Department 
of  State”,  “to  be  selected  by  the  Secretary”.  These  appoint¬ 
ments  were  made  without  examination,  though  it  does  not 
appear  that  they  were  treated  at  the  outset  as  positively  ex¬ 
cept  ed.  One  of  the  appointees,  Mrs.  Caroline  Galbreath, 
sought  to  obtain  a  permanent  appointment  by  taking  the  type¬ 
writing  examinations  of  the  Commission  in  September,  1899, 
but  she  failed  to  pass.  Application  was  then  made,  to  the 
Commission,  for  permission  to  retain  her  permanently  under 
the  clause  of  the  President’s  order  of  May,  1899,  continuing 
temporary  employees  holding  positions  on  that  date.  The 
Commission  declined  to  issue  a  certificate  on  the  ground  that 
the  clause  in  question  referred  only  to  those  who  had  been 
temporarily  appointed  under  the  rules,  and  in  the  absence  of 
an  eligible  list.  An  adequate  list  existed  when  Mrs.  Galbreath 
was  put  to  work.  When  the  question  was  referred  to  Attorney- 
General  Griggs,  he  gave  an  opinion  to  the  effect  that  a  cerU- 


9 

ficate  should  not  be  issued  under  the  circumstances,  but  that 
as  the  act  authorized  the  Secretary  of  State  to  “select”  and 
not  to  “appoint”,  none  of  the  rules  applied,  and  the  personal 
appointment  might  be  continued.  Your  Committee  believes 
that  this  opinion  is  essentially  in  error,  and  that  even  if  there 
were  a  difference  in  the  terms  used,  the  opportunity  for  an 
appointing  officer  to  “select”  is  fully  afforded  when,  as  the 
rules  provide,  three  names  are  certified,  from  among  which  his 
choice  may  be  made.  So  far  as  its  effect  on  the  case  of  Mrs. 
Galbreath  is  concerned,  however,  the  opinion  governs  until 
set  aside  by  some  competent  authority.  This  employee,  with 
others,  has  been  continued  from  year  to  year  under  further 
appropriations,  made  in  the  same  language,  passed  February 
24,  1899;  February  9,  1900;  and  March  3,  1901. 

Your  Committee  submit  that  if  the  practice  of  securing 
exemptions  by  the  methods  described  in  this  report  should  not 
be  checked  by  Congress  or  by  the  President,  it  will  be  possible 
for  the  opponents  of  the  merit  system  to  bring  about  a  gradual 
nullification  of  the  Civil  Service  act,  without  incurring  the 
odium  of  directly  attacking  it.  It  is  true  that,  in  the  absence 
of  direct  legislative  prohibition,  executive  officers  might  accept 
the  rules  and  employ  the  machinery  of  the  Civil  Service  Com¬ 
mission  in  making  appointments-— and  that  they  should  do 
so.  But  the  cases  referred  to  seem  to  show  that  their  action 
is  more  apt  to  be  in  favor  of  the  law’s  opponents  whenever 
the  latter  make  the  terms  of  the  appropriation  bills  literally 
different,  although  really  synonymous  with  those  of  the  Civil 
Service  act.  The  action  of  the  President  in  this  regard— -and 
upon  the  cases  already  submitted  to  him  as  herein  stated — is 
awaited  with  much  interest. 

Respectfully  submitted, 

William  Dudley  Foulke, 
Richard  Henry  Dana, 
William  A.  Aiken, 

Charles  Richardson, 
George  McAneny. 


112  099016468 


